ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 July 2019

	DOCKET NUMBER:  AR20180005637


APPLICANT REQUESTS: 

* in effect, an upgrade of his general, under honorable conditions discharge to honorable
* change in Block 28(Narrative Reason for Separation) of DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he is requesting an upgrade in character of separation and a change in the narrative reason for separation.

	a.  He was forced out of the Army due to personal issues with his wife.  He discovered she was having multiple affairs and was sent home; however, she began calling his commander and making false accusations.  The commander granted him leave to return home and rectify the situation, but when he returned he was informed she had called the commander’s home.

	b.  The commander became very frustrated with him and he was reduced in rank, his medical care ceased, and scheduled knee surgery did not take place because he was discharged from the Army within weeks.  The commander made it clear that the Army did not issue him a wife and if his personal issues could not be resolved, the applicant could not serve in his military.
	c.  Over the past 35 years, he has moved on, became a police officer, retired, and now serves as a Constable for the City of Charleston.  He was devastated by the discharge and would like to have it changed.  He gave the Army his all and to have it all taken away due to reasons other than his military performance is something he is ashamed of.  He has also discovered the type of discharge is having an impact on military benefits.

3.  A review of the applicant’s service record shows:

   a.  He enlisted in the Regular Army on 21 February 1978.  He reenlisted on 16 February 1982.

b.  He served in Germany from 9 July 1978 to 31 July 1980.

   c.  He received nonjudicial punishment (NJP) on/for:

* 30 March 1981, failure to obey a lawful order and failure to be at his appointed place of duty; his punishment included reduction to private/E-2 (suspended until 2 August 1981), detention of $260.00 for two months, and extra duty and restriction
* 16 June 1981, stealing a dinner meal of a value of $1.59, property of the United States Government; his punishment included reduction to private/E-2 (suspended until 23 October 1981) and forfeiture of $130.00 for one month
* 28 July 1981, failure to be at his appointed place of duty; his punishment included reduction to private/E-2 and forfeiture of $130.00 for one month

	d.  On 12 September 1983, he was convicted by a summary court-martial of one specification of failure to be at this appointed place of duty.  His sentence included reduction to private first class/E-3.

	e.  The applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13 for unsatisfactory performance.  

	f.  The applicant consulted with counsel who advised him of the basis for the contemplated action to accomplish his separation for unsatisfactory performance under the provisions of chapter 13, AR 635-200, and its effects of the rights available to him; and the effect of any action by me in waiving those rights.  He acknowledged: 

* the rights available to him and the effect of waiving said rights
* he may encounter substantial prejudice in civilian life if a discharge under other than honorable conditions is issued to him
* he may be ineligible for many or all benefits as a Veteran under both Federal and State laws
* he may apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading
* he is ineligible to apply for enlistment in the Army for 2 years after discharge

   g.  He submitted a statement wherein he took full responsibility for some of the things he did, but also felt that his problems were caused in great part due to family issues that were very stressful.  He reiterated that it did not hinder his performance, as one senior non-commissioned officer (NCO) testified that he was a great Soldier and it was echoed by other NCOs.  He felt the discharge has nothing to do with poor job performance, but because his NCOs are tired of dealing with his personal problems.  He had never stopped doing what he was ordered to do, but has been challenged getting ahold of his family problems.  He gained significant knowledge in the military and felt he still had a lot to offer.  He asked that it all be taken into consideration and he be allowed to complete his tour of duty.

   h.  On 11 October 1983, the immediate commander initiated separation action against the applicant for unsatisfactory performance.  The commander indicated that this action is based upon the fact that the service member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  The ability of the member to perform duties effectively in the future including potential for advancement or leadership is unlikely.

	i.  On 8 November 1983, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of Chapter 13, AR 635-200 (Personnel Separations – Enlisted Personnel), for unsatisfactory performance.  He would be issued a General Discharge Certificate.

	j.  On 17 November 1983, he was discharged from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 13 of AR 635-200 with a general, under honorable conditions characterization of service.  He completed 5 years, 8 months, and 24 days of active service.  He was assigned Separation Code JHJ and the narrative reason for separation "Unsatisfactory Performance." It also shows he was awarded or authorized:

* Mechanics Badge
* Army Service Ribbon
* Overseas Service Ribbon
* Army Achievement Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

5.  By regulation, (AR 15-185) an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  

6.  By regulation, (AR 635-200) a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 

7.  By regulation, (AR 635-5) Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can be checked against the cross reference in AR 635-5-1 (Separation Program Designator Codes).  AR 635-5-1 states Soldiers separated under the provisions of chapter 13 of AR 635-200 are assigned Separation Code JHJ which stands for Unsatisfactory Performance. 

8.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  He was discharged after having an unsatisfactory performance and was provided an under honorable conditions (General) characterization of service.  The Board agreed that the applicant's discharge characterization and reason for separation is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 21 February 1978 until 15 February 1982.”

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains changing the reason for separation and upgrading the characterization of his discharge.
	 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met, the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Chapter 13 of the regulation states a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.  

3.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  

   a.  States for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment).

	b.  Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can be checked against the cross reference in AR 635-5-1 (Separation Program Designator Codes).

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

   a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

   b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180005637


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